EXHIBIT 10.7
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MORTGAGE, ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
dated as of March 28, 2001
from
POLAROID CORPORATION,
the Mortgagor,
to
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
as Collateral Agent,
the Mortgagee
PROPERTY:
850, 910, 916 and 000 Xxxxxx Xxxxxx
Xxxx xx Xxxxxxx
Xxxxxx of Middlesex
Commonwealth of Massachusetts
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THIS INSTRUMENT CONTAINS AFTER-ACQUIRED PROPERTY PROVISIONS AND SECURES
OBLIGATIONS CONTAINING PROVISIONS FOR CHANGES IN INTEREST RATES. THIS INSTRUMENT
ALSO SECURES FUTURE ADVANCES.
TABLE OF CONTENTS
PAGE
RECITALS.......................................................................1
GRANTING CLAUSES
GRANTING CLAUSE X.XXXX.........................................................3
GRANTING CLAUSE II.IMPROVEMENTS................................................3
GRANTING CLAUSE XXX.XXXXXXXXX. ................................................3
GRANTING CLAUSE IV.APPURTENANT RIGHTS. ........................................4
GRANTING CLAUSE V.AGREEMENTS. .................................................4
GRANTING CLAUSE VI.LEASES. ....................................................5
GRANTING CLAUSE VII.RENTS, ISSUES AND PROFITS. ................................5
GRANTING CLAUSE VIII.PERMITS. .................................................5
Granting Clause IX.BOOKS AND RECORDS...........................................5
Granting Clause X.INTANGIBLE PROPERTY..........................................6
GRANTING CLAUSE XI.PROCEEDS AND AWARDS. .......................................6
GRANTING CLAUSE XII.ADDITIONAL PROPERTY. ......................................6
ARTICLE 1 DEFINITIONS AND INTERPRETATION
SECTION 1.01. DEFINITIONS.....................................................7
SECTION 1.02. INTERPRETATION.................................................10
SECTION 1.03. RESOLUTION OF DRAFTING AMBIGUITIES.............................11
ARTICLE 2 CERTAIN WARRANTIES AND COVENANTS OF THE MORTGAGEE
SECTION 2.01. TITLE, AUTHORITY AND EFFECTIVENESS.............................11
SECTION 2.02. SECURED OBLIGATIONS............................................13
SECTION 2.03. IMPOSITIONS....................................................13
SECTION 2.04. LEGAL AND INSURANCE REQUIREMENTS...............................13
SECTION 2.05. STATUS AND CARE OF THE PROPERTY................................14
SECTION 2.06. PERMITTED CONTESTS.............................................14
SECTION 2.07. LIENS..........................................................15
SECTION 2.08. TRANSFER.......................................................15
ARTICLE 3 INSURANCE, CASUALTY AND CONDEMNATION
SECTION 3.01. INSURANCE......................................................16
SECTION 3.02. CASUALTY AND CONDEMNATION......................................17
SECTION 3.03. CASUALTY PROCEEDS..............................................18
ARTICLE 4 CERTAIN SECURED OBLIGATIONS
SECTION 4.01. REVOLVING LOANS, ETC...........................................19
SECTION 4.02. INTEREST AFTER DEFAULT.........................................19
SECTION 4.03. CHANGES IN THE LAWS REGARDING TAXATION.........................20
SECTION 4.04. INDEMNIFICATION................................................20
ARTICLE 5 DEFAULTS, REMEDIES AND RIGHTS
SECTION 5.01. EVENTS OF DEFAULT..............................................20
SECTION 5.02. REMEDIES.......................................................21
SECTION 5.03. WAIVERS BY THE MORTGAGOR.......................................24
SECTION 5.04. JURISDICTION AND PROCESS.......................................24
SECTION 5.05. SALES..........................................................25
SECTION 5.06. PROCEEDS.......................................................26
SECTION 5.07. ASSIGNMENT OF LEASES...........................................27
SECTION 5.08. DEALING WITH THE MORTGAGED PROPERTY............................28
SECTION 5.09. RIGHT OF ENTRY.................................................28
SECTION 5.10. RIGHT TO PERFORM OBLIGATIONS...................................28
ARTICLE 6 SECURITY AGREEMENT AND FIXTURE FILING
SECTION 6.01. SECURITY AGREEMENT.............................................29
SECTION 6.02. FIXTURE FILING.................................................29
ARTICLE 7 MISCELLANEOUS
SECTION 7.01. RELEASE OF MORTGAGED PROPERTY..................................30
SECTION 7.02. CONCERNING THE MORTGAGEE.......................................31
SECTION 7.03. NOTICES........................................................31
SECTION 7.04. AMENDMENTS IN WRITING..........................................32
SECTION 7.05. SEVERABILITY...................................................32
SECTION 7.06. BINDING EFFECT.................................................32
SECTION 7.07. GOVERNING LAW..................................................32
SECTION 7.08. WAIVER OF TRIAL BY JURY........................................32
SECTION 7.09. SUBMISSION TO JURISDICTION.....................................33
SECTION 7.10. COUNTERPARTS...................................................33
EXHIBIT A PROPERTY DESCRIPTION...............................................A-1
EXHIBIT B PERMITTED ENCUMBRANCES.............................................B-1
EXHIBIT C RECORDINGS AND FILINGS.............................................C-1
MORTGAGE, ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
THIS MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND
FIXTURE FILING (this "Mortgage") is dated as of March __, 2001 by POLAROID
CORPORATION, a Delaware corporation having an address at 000 Xxxxxxxx Xxxxx,
Xxxxxxxxx, XX 00000, Attention: Xxxxxxxx X. Xxxx III, Vice President (the
"MORTGAGOR"), to XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, a New York banking
corporation having an address at c/o XX Xxxxxx Services Inc., 000 Xxxxxxx
Xxxxxxxxxx Xxxx, Xxxxxx, XX 00000, Attention: Xxxx Xxxxxx, as Collateral Agent
(the "MORTGAGEE").
WITNESSETH:1
RECITALS
A. CREDIT AGREEMENT. Reference is hereby made to the Amended and
Restated Credit Agreement dated as of December 11, 1998, as heretofore modified
by Amendment No. 1 to Amended and Restated Credit Agreement dated as of March
31, 1999, Amendment No. 2 to Amended and Restated Credit Agreement dated as of
September 10, 1999, Amendment No. 3 to Amended and Restated Credit Agreement
dated as of November 10, 2000, Amendment No. 4 to and Waiver No. 1 under Amended
and Restated Credit Agreement dated as of February 16, 2001, and Amended and
Restated Amendment No. 4 to and Waiver No. 1 under Amended and Restated Credit
Agreement dated as of March 21, 2001 ("WAIVER NO. 1") (collectively as hereafter
amended from time to time, the "CREDIT AGREEMENT") among the Mortgagor, as the
Company, the Lenders party thereto, Xxxxxx Guaranty Trust Company of New York,
as the Administrative Agent and the Collateral Agent and Fleet National Bank
(f/k/a/ BankBoston, N.A.), as the Co-Agent. Pursuant to the Credit Agreement,
(i) the Mortgagor has obtained and may obtain from time to time hereafter
revolving Loans from the Lenders in an aggregate principal amount not to exceed
$350,000,000, which Loans are intended to be and are Secured Obligations for the
purposes of this Mortgage and the other Financing Documents; (ii) pursuant to
Section 2.16(a) of the Credit Agreement, the Mortgagor has designated and may
designate from time to time hereafter its obligations to banks or other
financial institutions (which may include one or more of the Lenders) in respect
of Additional Loans in an aggregate principal amount not to exceed $200,000,000
as additional Secured Obligations for the purposes
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1Capitalized terms are defined in, or by reference in, Section 1.01.
of this Mortgage and the other Financing Documents; (iii) pursuant to Section
2.16(c) of the Credit Agreement, has designated and may designate from time to
time hereafter its obligations with respect to (x) letters of credit, as to
which the aggregate actual and contingent obligations do not exceed $3,000,000,
(y) interest rate swap or other interest rate hedging agreements or (z) currency
swap agreements or other currency hedging agreements (which agreements referred
to in the foregoing clauses (y) and (z) are referred to as Hedging Agreements),
under which Hedging Agreements the aggregate outstanding notional amounts do not
exceed $50,000,000, as additional Secured Obligations for the purposes of this
Mortgage and the other Financing Documents; and (iv) pursuant to Section 2.16(d)
of the Credit Agreement, with the prior written consent of the Administrative
Agent, the Collateral Agent and the Super-Majority Lenders, may designate from
time to time hereafter other obligations of the Mortgagor (including obligations
with respect to letters of credit or Hedging Agreements not covered by the
foregoing clause (iii)) as additional Secured Obligations for the purposes of
this Mortgage and the other Financing Documents. The Loans are evidenced by
Notes.
B. MORTGAGE. This Mortgage is being granted by the Mortgagor to the
Mortgagee pursuant to Section 6 of Waiver No. 1 to secure the due and punctual
payment, performance and observance of the following indebtedness, liabilities
and obligations, whether now or hereafter arising or incurred, or whether now or
hereafter owed or owing (collectively as the "SECURED OBLIGATIONS"):
(i) all principal of all Loans outstanding from time to time under the
Credit Agreement, all interest (including Post-Petition Interest) on
such Loans and all other amounts (including fees and disbursements of
counsel) now or hereafter payable by the Mortgagor pursuant to any
Financing Document (including this Mortgage), (ii) if the Mortgagor
designates loans from banks or other financial institutions as
additional Secured Obligations, as permitted by Section 2.16(a) of the
Credit Agreement, all principal of such loans, all interest (including
Post-Petition Interest) on such loans and all other amounts (including
fees and disbursements of counsel) now or hereafter payable by the
Mortgagor with respect thereto, (iii) any other obligations designated
by the Mortgagor as additional Secured Obligations pursuant to Section
2.16 of the Credit Agreement.
C. The maximum principal amount of Secured Obligations outstanding at
any time from time to time that may be secured by this Mortgage is $350,000,000,
PLUS the amount of the Secured Obligations under clauses (ii) and (iii) of the
definition of the term Secured Obligations (the "MAXIMUM SECURED AMOUNT"). The
Mortgagor hereby agrees that, notwithstanding anything to the contrary contained
in the Financing Documents, repayments of the Secured Obligations shall be
applied first to that portion of the Secured Obligations in excess of the
Maximum Secured Amount. The Mortgagor hereby further agrees that the aforesaid
limitation does not limit or otherwise derogate any of the rights or remedies of
the Lenders, the Administrative Agent or the Collateral Agent under any of the
other Financing Documents.
D. The scheduled final maturity date of the latest to mature of the
Secured Obligations is December 31, 2001 under clause (i) of the definition of
the term Secured Obligations, unless such date is not a Euro-Dollar Business
Day, in which case such maturity date shall be the next succeeding Euro-Dollar
Business Day.
GRANTING CLAUSES
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, for the purpose of securing the due and punctual payment,
performance and observance of the Secured Obligations and intending to be bound
hereby, the Mortgagor does hereby GRANT, BARGAIN, SELL, CONVEY, MORTGAGE,
ASSIGN, TRANSFER and WARRANT with MORTGAGE
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COVENANTS to the Mortgagee and its successors as Collateral Agent, with power of
sale and right of entry as hereinafter provided, and (to the extent covered by
the UCC) does hereby GRANT and WARRANT to the Mortgagee and its successors as
Collateral Agent a continuing first security interest in and to, all of the
property and rights described in the following Granting Clauses (all of which
property and rights are collectively called the "MORTGAGED PROPERTY"), to wit:
GRANTING CLAUSE I.
LAND. All estate, right, title and interest of the Mortgagor in, to,
under or derived from the lots, pieces, tracts or parcels of land located in the
City of Waltham, County of Middlesex, Commonwealth of Massachusetts, more
particularly described in Exhibit A (the "LAND").
GRANTING CLAUSE II.
IMPROVEMENTS. All estate, right, title and interest of the Mortgagor
in, to, under or derived from all buildings, structures, facilities, systems,
equipment, fixtures and other improvements of every kind and description now or
hereafter located on or attached to the Land or the improvements thereon which
by the nature of their location thereon or attachment thereto or otherwise are
real property under applicable law, including all parking areas, roads,
driveways, walks, fences, walls, berms, landscaping, plantings, recreation
facilities, drainage facilities, lighting facilities and other site
improvements, all water, sanitary and storm sewer, drainage, electric, steam,
gas, telecommunications, cable and other utility equipment, systems, facilities
and fixtures, all plumbing, lighting, heating, ventilating, air-conditioning,
refrigerating, incinerating, compacting, fire protection, sprinkler,
surveillance, security, vacuum, cleaning, public address and communications
equipment, systems, facilities and fixtures, all elevators, escalators,
machinery, motors, boilers, stokers, furnaces, engines, pumps, compressors,
generators, dynamos, tanks, pipes, ducts, conduits, wires, cranes, scaffolds,
screens, awnings, shades, blinds, curtains, draperies, rugs, floor coverings,
partitions, walls, wall coverings, paintings, murals, sculptures, works of art
and other items of equipment, personal property and fixtures of every kind and
description which are real property under applicable law; and including all
materials intended for the construction, reconstruction, repair, replacement,
alteration, addition or improvement of or to such buildings, structures,
facilities, systems, equipment, fixtures and improvements, all of which
materials shall be deemed to be part of the Mortgaged Property to the full
extent of the interest of the Mortgagor therein immediately upon delivery
thereof on the Land and to be part of the improvements immediately upon their
incorporation therein (the foregoing being collectively the "IMPROVEMENTS").
GRANTING CLAUSE III.
EQUIPMENT. All estate, right, title and interest of the Mortgagor in,
to, under or derived from all equipment, fixtures, chattels and articles of
personal property now or hereafter owned by the Mortgagor or in which the
Mortgagor now or hereafter has an interest, wherever situated, and now or
hereafter located on, attached to, contained in or used in connection with the
Land or Improvements which are not real property under applicable law, including
all stoves, ranges, ovens, washers, dryers, dishwashers, appliances, equipment,
furniture, furnishings, fittings, fixtures, utensils, tools, implements,
screens, awnings, shades, blinds, curtains, draperies, carpets,
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rugs, floor coverings, partitions, walls, wall coverings, paintings, murals,
sculptures and works of art, all water, sanitary and storm sewer, drainage,
electric, steam, gas, telecommunications, cable, and other utility equipment,
systems and facilities, all plumbing, lighting, heating, ventilating,
air-conditioning, refrigerating, incinerating, compacting, fire protection,
sprinkler, surveillance, security, vacuum, cleaning, public address and
communications equipment, systems and facilities, all elevators, escalators,
machinery, motors, boilers, stokers, furnaces, engines, pumps, compressors,
generators, dynamos, tanks, pipes, ducts, conduits, all spare or component
parts, and all other items of equipment, systems, facilities, chattels and
articles of personal property owned by the Mortgagor or in which the Mortgagor
has an interest located on, attached to, contained in or used in connection with
the Land or Improvements which are not real property under applicable law (all
of the foregoing being hereinafter collectively called the "EQUIPMENT"; and the
Land, the Improvements and the Equipment being collectively called the
"PROPERTY"). If any of the Equipment under this Granting Clause is covered by an
equipment lease, title retention or security agreement, (i) the grant under this
Granting Clause (but not the definition of "Equipment" for the other purposes
hereof) excludes any Equipment which cannot be transferred or encumbered by the
Mortgagor without causing a termination of such agreement or default thereunder,
otherwise (ii) the grant under this Granting Clause includes all of the
Mortgagor's right, title and interest in, to and under such agreement, together
with the benefits of all deposits and payments now or hereafter made thereunder
by or on behalf of the Mortgagor, and subject to all of the terms and conditions
of such agreement and the liens and security interests thereunder.
GRANTING CLAUSE IV.
APPURTENANT RIGHTS. All estate, right, title and interest of the
Mortgagor in, to, under or derived from all tenements, hereditaments and
appurtenances now or hereafter relating to the Property, all streets, roads,
sidewalks and alleys abutting the Land, all strips and gores within or adjoining
the Land, all land in the bed of any body of water adjacent to the Land, all
land adjoining the Land created by artificial means or by accretion, all air
space and rights to use air space above the Land; all development or similar
rights now or hereafter appurtenant to the Land, all rights of ingress and
egress now or hereafter appertaining to the Property, all easements, servitudes,
rights of way, alley, party wall, support, drainage, crop, timber, agricultural
and horticultural rights, oil, gas and other mineral rights, and water stock,
riparian and other water rights now or hereafter appertaining to the Property,
and other rights now or hereafter appertaining to the use and enjoyment of the
Property.
GRANTING CLAUSE V.
AGREEMENTS. All estate, right, title and interest of the Mortgagor in,
to, under or derived from all Insurance Policies (including all unearned
premiums and dividends thereunder), guarantees and warranties now or hereafter
relating to the Property, all supply and service contracts for water, sanitary
and storm sewer, drainage, electricity, steam, gas, telephone and other
utilities now or hereafter relating to the Property and all other contracts and
contract rights now or hereafter relating to use and operation of the Property
(the foregoing being collectively called the "AGREEMENTS").
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GRANTING CLAUSE VI.
LEASES. All estate, right, title and interest of the Mortgagor in, to,
under and derived from all Leases now or hereafter in effect, whether or not of
record, for the use or occupancy of all or any part of the Property, together
with all amendments, supplements, consolidations, replacements, restatements,
extensions, renewals and other modifications of any thereof.
GRANTING CLAUSE VII.
RENTS, ISSUES AND PROFITS. All estate, right, title and interest of the
Mortgagor in, to, under or derived from all rents, royalties, issues, profits,
receipts, revenue, income and other benefits now or hereafter, including during
any period of redemption, accruing with respect to the Property, including all
rents and other sums now or hereafter, including during any period of
redemption, payable pursuant to the Leases; all other sums now or hereafter,
including during any period of redemption, payable with respect to the use,
occupancy, management, operation or control of the Property; and all other
claims, rights and remedies now or hereafter, including during any period of
redemption, belonging or accruing with respect to the Property, including fixed,
additional and percentage rents, occupancy charges, security deposits, parking,
maintenance, common area, tax, insurance, utility and service charges and
contributions (whether collected under the Leases or otherwise), proceeds of
sale of electricity, gas, heating, air-conditioning and other utilities and
services (whether collected under the Leases or otherwise), and deficiency rents
and liquidated damages following default or cancellation (the foregoing rents
and other sums described in this Granting Clause being collectively called the
"RENTS"), all of which the Mortgagor hereby irrevocably directs be paid to the
Mortgagee, subject to the license granted to the Mortgagor pursuant to Section
5.07(b) , to be held, applied and disbursed as provided in this Mortgage.
GRANTING CLAUSE VIII.
PERMITS. All estate, right, title and interest of the Mortgagor in, to,
under or derived from all licenses, authorizations, certificates, variances,
grants, concessions, franchises, consents, approvals and other permits now or
hereafter pertaining to the Property (the foregoing being collectively called
the "PERMITS"), excluding from the grant under this Granting Clause (but not the
definition of the term "PERMITS" for the other purposes hereof) any Permits
which cannot be transferred or encumbered by the Mortgagor without causing a
termination thereof or a default thereunder.
GRANTING CLAUSE IX.
BOOKS AND RECORDS. All estate, right, title and interest of the
Mortgagor in, to, under or derived from all books and records, including any
tenant files, credit files, customer files, computer print outs, files, programs
and other computer and electronic materials and records, now or hereafter
relating primarily to the ownership and operation of the Real Property (as
opposed to Mortgagor's business operations on the Real Property).
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GRANTING CLAUSE X.
INTANGIBLE PROPERTY. All estate, right, title and interest of the
Mortgagor in, to, under or derived from all names and addresses of the Property
and other intangible property not described in the foregoing Granting Clauses
now or hereafter relating to the ownership and operation of the Real Property
(as opposed to Mortgagor's business operations on the Real Property).
GRANTING CLAUSE XI.
PROCEEDS AND AWARDS. All estate, right, title and interest of the
Mortgagor in, to, under or derived from all proceeds of any Transfer, financing,
refinancing or conversion into cash or liquidated claims, whether voluntary or
involuntary, of any of the Mortgaged Property, including all Insurance Proceeds
and Awards, all title insurance proceeds under any title insurance policy now or
hereafter held by the Mortgagor, and all rights, dividends and other claims of
any kind whatsoever (including damage, secured, unsecured, priority and
bankruptcy claims) now or hereafter relating to any of the Mortgaged Property,
all of which the Mortgagor hereby irrevocably directs be paid to the Mortgagee
to the extent provided hereunder or under any other Financing Document, to be
held, applied and disbursed as provided in this Mortgage.
GRANTING CLAUSE XII.
ADDITIONAL PROPERTY. All greater, additional or other estate, right,
title and interest of the Mortgagor in, to, under or derived from the Mortgaged
Property now or hereafter owned or acquired by the Mortgagor, including all
right, title and interest of the Mortgagor in, to, under or derived from all
extensions, improvements, betterments, renewals, substitutions and replacements
of, and additions and appurtenances to, any of the Mortgaged Property hereafter
acquired by or released to the Mortgagor or constructed or located on, or
attached to, the Property, in each case, immediately upon such acquisition,
release, construction, location or attachment; all estate, right, title and
interest of the Mortgagor in, to, under or derived from any other property and
rights which are, by the provisions of the any Financing Document, required to
be subjected to the Lien hereof; all estate, right, title and interest of the
Mortgagor in, to, under or derived from any other property and rights which are
necessary to maintain the Property, in each case to the fullest extent permitted
under applicable law, without any further conveyance, mortgage, assignment or
other act by the Mortgagor; and all estate, right, title and interest of the
Mortgagor in, to, under or derived from all other property and rights which are
by any instrument or otherwise subjected to the Lien hereof by the Mortgagor or
anyone acting on its behalf.
TO HAVE AND TO HOLD the Mortgaged Property, together with all estate,
right, title and interest of the Mortgagor and anyone claiming by, through or
under the Mortgagor in, to, under or derived from the Mortgaged Property and all
rights and appurtenances relating thereto, unto the Mortgagee and its successors
and assigns forever.
PROVIDED ALWAYS that this Mortgage is upon the express condition that
the Mortgaged Property shall be released from the Lien of this Mortgage in full
or in part in the manner and at the time provided in Section 7.01(a).
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THE MORTGAGOR ADDITIONALLY COVENANTS AND AGREES WITH THE MORTGAGEE AS
FOLLOWS:
ARTICLE 1
DEFINITIONS AND INTERPRETATION
SECTION 1.1. DEFINITIONS. (a) Capitalized terms used in this Mortgage,
but not otherwise defined herein, are defined in or by reference in the Credit
Agreement and have the same meanings herein as therein.
(b) In addition, as used herein, the following terms have the following
meanings:
"AGREEMENTS" is defined in Granting Clause V.
"AWARDS" means at any time all awards or payments received or
receivable by reason of any Condemnation, including all amounts received or
receivable with respect to any Transfer in lieu or anticipation of Condemnation
or in connection with any agreement with any condemning authority which has been
made in settlement of any proceeding relating to a Condemnation.
"BANKRUPTCY CODE" means the Bankruptcy Code of 1978, as amended.
"CASH PROCEEDS ACCOUNT" is defined in the Security Agreement.
"CASUALTY" means any damage to, or destruction of, the Property,
reasonable wear and tear in the ordinary course of business excepted.
"CASUALTY PROCEEDS" means at any time all Insurance Proceeds and all
Awards with respect to, respectively, any Casualty or any Condemnation.
"CASUALTY PROCEEDS ACCOUNT" is defined in the Security Agreement.
"COLLATERAL ACCOUNT" is defined in the Security Agreement.
"CONDEMNATION" means any condemnation or other taking or temporary or
permanent requisition of any Property, any interest therein or right appurtenant
thereto, or any change of grade affecting any Property, as the result of the
exercise of any right of condemnation or eminent domain. A Transfer to a
governmental authority in lieu or anticipation of Condemnation shall be deemed
to be a Condemnation.
"CREDIT AGREEMENT" is defined in Recital A.
"EQUIPMENT" is defined in Granting Clause III.
"EVENT OF DEFAULT" is defined in Section 5.01.
"IMPOSITIONS" means all taxes (including real estate taxes and
transfer, sales and use taxes), assessments (including all assessments for
public improvements or benefits, whether or not
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commenced or completed prior to the date hereof), water, sewer or other rents,
rates and charges, excises, levies, license fees, permit fees, inspection fees
and other authorization fees and other charges, in each case whether general or
special, ordinary or extraordinary, foreseen or unforeseen, of every character
(including all interest and penalties thereon), which at any time may be
assessed, levied, confirmed or imposed on or in respect of, or be a Lien upon,
(i) the Property, any other Mortgaged Property or any interest therein, (ii) any
occupancy, use or possession of, or activity conducted on, the Property, (iii)
the Rents from the Property or the use or occupancy thereof, or (iv) the Secured
Obligations or the Collateral Documents, but excluding income, excess profits,
franchise, capital stock, estate, inheritance, succession, gift or similar taxes
of the Mortgagee or any other Secured Party, except to the extent that such
taxes of the Mortgagee or any other Secured Party are imposed in whole or in
part in lieu of, or as a substitute for, any taxes which are or would otherwise
be Impositions.
"IMPROVEMENTS" is defined in Granting Clause II.
"INSURANCE POLICIES" means the insurance policies and coverages
required to be maintained by the Mortgagor with respect to the Property pursuant
to the Credit Agreement and Section 3.01.
"INSURANCE PREMIUMS" means all premiums payable under the Insurance
Policies.
"INSURANCE PROCEEDS" means, at any time, all insurance proceeds or
payments to which the Mortgagor may be or become entitled under the property
Insurance Policies by reason of any Casualty, plus (i) if the Mortgagor fails to
maintain any of such Insurance Policies in accordance with the terms of the
Credit Agreement or Section 3.01, the amounts which would have been available
with respect to such Casualty had the Mortgagor maintained such Insurance
Policies and (ii) all insurance proceeds and payments to which the Mortgagor may
be or become entitled in the event of any Casualty under any other property
insurance policies, coverages or self-insurance maintained by the Mortgagor with
respect to the Property.
"INSURANCE REQUIREMENTS" means all provisions of the Insurance
Policies, all requirements of the issuer of any of the Insurance Policies and
all orders, rules, regulations and any other requirements of the National Board
of Fire Underwriters (or any other body exercising similar functions) binding
upon the Mortgagor or applicable to the Property, any adjoining vaults,
sidewalks, parking areas or driveways or any use or condition thereof.
"LAND" is defined in Granting Clause I.
"LEASE" means each lease, tenancy, subtenancy, license, franchise,
concession or other occupancy agreement relating to the Property, together with
any guarantee of the obligations of the tenant or other occupant thereunder or
any occupancy or right to possession under any federal or state Bankruptcy Code
in the event of the rejection of any Lease by the landlord or its trustee
pursuant to said Code.
"LEGAL REQUIREMENTS" means all provisions of the Leases, the
Agreements, the Permitted Liens, the Permits and all applicable laws, statutes,
codes, acts, ordinances, orders, judgments, decrees, injunctions, rules,
regulations, directions and requirements of, and agreements with,
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governmental bodies, agencies or officials, including Environmental Laws, now or
hereafter applicable to the Property, or any use or condition thereof.
"MAXIMUM SECURED AMOUNT" is defined in Recital C.
"MORTGAGE" is defined in the Preamble.
"MORTGAGED PROPERTY" is defined in the Granting Clauses.
"MORTGAGEE" is defined in the Preamble.
"MORTGAGOR" is defined in the Preamble.
"NATIONAL FLOOD INSURANCE PROGRAM" means the National Flood Insurance
Act of 1968 and the Flood Disaster Protection Act of 1973 (42 U.S.C. Sections
4001 ET SEQ.).
"PERMITS" is defined in Granting Clause VIII.
"PERMITTED ENCUMBRANCES" means the Liens described in Exhibit B.
"PERMITTED LIENS" means (i) any Liens with respect to the Mortgaged
Property permitted under clauses (g), (i), (k) and, with respect to the
Equipment, (c) of Section 5.12 of the Credit Agreement, (ii) any Liens being
contested pursuant to Section 2.06, and (iii) the Permitted Encumbrances.
"POST-DEFAULT RATE" means, with respect to each Loan, the rate per
annum specified in the Credit Agreement for interest on any overdue principal of
or interest on such Loan.
"PROPERTY" is defined in Granting Clause III.
"RECEIVER" is defined in Section 5.02(a)(v).
"RENTS" is defined in Granting Clause VII.
"RESTORATION" means the restoration, repair, replacement or rebuilding
of the Property after a Casualty or Condemnation, and "RESTORE" means to
restore, repair, replace or rebuild the Property after a Casualty or
Condemnation, in each case as nearly as possible to its value, utility and
condition immediately prior to such Casualty or Condemnation.
"SECURED OBLIGATIONS" is defined in Recital B.
"SECURED PARTIES" means the holders from time to time of the Secured
Obligations, including the Lenders, the Administrative Agent, the Collateral
Agent and the Mortgagee.
"SECURITY AGREEMENT" means the Amended and Restated Security Agreement
dated as of March 21, 2001 among the Mortgagor, as the Company, the Subsidiary
Guarantors parties thereto and Xxxxxx Guaranty Trust Company of New York, as
Collateral Agent, as heretofore or hereafter amended from time to time.
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"SECURITY DEPOSIT" means any payment, note, letter of credit or other
security or deposit made or given by or on behalf of a tenant under a Lease as
security for the performance of its obligations thereunder, and any interest
payable to the tenant accrued thereon.
"TRANSFER" means, when used as a noun, any sale, conveyance,
assignment, lease or other transfer and, when used as a verb, to sell, convey,
assign, lease or otherwise transfer, in each case (i) whether voluntary or
involuntary, (ii) whether direct or indirect and (iii) including any agreement
providing for a Transfer or granting any right or option providing for a
Transfer, but not including the transfer of the capital stock of the Mortgagor.
"UNAVOIDABLE DELAYS" means delays due to acts of God, fire, flood,
earthquake, explosion or other Casualty, inability to procure or shortage of
labor, equipment, facilities, sources of energy (including electricity, steam,
gas or gasoline), materials or supplies, failure of transportation, strikes,
lockouts, action of labor unions, Condemnation, litigation relating to Legal
Requirements, inability to obtain Permits or other causes beyond the reasonable
control of the Mortgagor, PROVIDED that lack of funds shall not be deemed to be
a cause beyond the control of the Mortgagor.
"UCC" means the Uniform Commercial Code as in effect in the State in
which the Mortgaged Property is located.
"WAIVER NO. 1" is defined in Recital A.
(c) In this Mortgage, unless otherwise specified, references to this
Mortgage, the Credit Agreement, Notes, Security Agreement, Collateral Documents,
Financing Documents, Designated Interest Rate Agreements, Designated Letters of
Credit, Secured Obligations, Lease and Permits include all amendments,
supplements, consolidations, replacements, restatements, extensions, renewals
and other modifications thereof now or hereafter in effect from time to time.
(d) "MORTGAGE COVENANTS", "STATUTORY CONDITION" and "STATUTORY POWER OF
SALE", in each case, are defined in Massachusetts General Law, c. 183, sections
19, 20, and 21, respectively, which definitions are incorporated herein and by
reference.
SECTION 1.2. INTERPRETATION. In this Mortgage, unless otherwise
specified, (i) singular words include the plural and plural words include the
singular; (ii) words which include a number of constituent parts, things or
elements, including the terms Land, Improvements, Equipment, Property, Mortgaged
Property, Leases, Permits, Collateral Documents, Financing Documents, letters of
credit, Hedging Agreements, Secured Obligations, shall be construed as referring
separately to each constituent part, thing or element thereof, as well as to all
of such constituent parts, things or elements as a whole; (iii) words importing
any gender include the other genders; (iv) references to any Person include such
Person's successors and assigns and in the case of an individual, the word
"SUCCESSORS" includes such Person's heirs, devisees, legatees, executors,
administrators and personal representatives; (v) references to any statute or
other law include all applicable rules, regulations and orders adopted or made
thereunder and all statutes or other laws amending, consolidating or replacing
the statute or law referred to; (vi) the words "CONSENT", "APPROVE", "AGREE" and
"REQUEST", and derivations thereof or words of similar import, mean the
10
prior written consent, approval, agreement or request of the Person in question;
(vii) the words "INCLUDE" and "INCLUDING", and words of similar import, shall be
deemed to be followed by the words "WITHOUT LIMITATION"; (viii) the words
"HERETO", "HEREIN", "HEREOF" and "HEREUNDER", and words of similar import, refer
to this Mortgage in its entirety; (ix) references to Articles, Sections,
Schedules, Exhibits, subsections, paragraphs and clauses are to the Articles,
Sections, Schedules, Exhibits, subsections, paragraphs and clauses of this
Mortgage; (x) the Schedules and Exhibits to this Mortgage are incorporated
herein by reference; (xi) the titles and headings of Articles, Sections,
Schedules, Exhibits, subsections, paragraphs and clauses are inserted as a
matter of convenience and shall not affect the construction of this Mortgage;
(xii) all obligations of the Mortgagor hereunder shall be satisfied by the
Mortgagor at the Mortgagor's sole cost and expense; and (xiii) all rights and
powers granted to the Mortgagee hereunder shall be deemed to be coupled with an
interest and be irrevocable until such time as this Mortgage is released or
discharged as provided in Section 7.01.
SECTION 1.3. RESOLUTION OF DRAFTING AMBIGUITIES. (a) The Mortgagor
acknowledges that it was represented by counsel in connection with this
Mortgage, that it and its counsel reviewed and participated in the preparation
and negotiation of this Mortgage and that any rule of construction to the effect
that ambiguities are to be resolved against the drafting party or the Mortgagee
shall not be employed in the interpretation of this Mortgage.
(b) In the event of any conflict between the provisions of this
Mortgage and the provisions of the Credit Agreement or the Security Agreement,
the provisions of the Credit Agreement or the Security Agreement, as applicable,
shall control, PROVIDED that the provisions of this Mortgage shall control with
respect to the creation, perfection, priority and enforcement of the Liens
created hereby and with respect to the remedies granted herein and the
enforcement thereof.
ARTICLE 2
CERTAIN WARRANTIES AND COVENANTS OF THE MORTGAGEE
SECTION 2.1. TITLE, AUTHORITY AND EFFECTIVENESS. (a) The Mortgagor
represents and warrants that (i) the Mortgagor has good and marketable title to
the fee simple interest in the Land and the Improvements free and clear of all
Liens other than the Permitted Liens; (ii) the Mortgagor is the owner of, or has
a valid leasehold interest in, the Equipment and all other items constituting
the Mortgaged Property free and clear of all Liens other than the Permitted
Liens; (iii) the execution, delivery and performance by the Mortgagor of this
Mortgage are within the Mortgagor's corporate power, have been duly authorized
by all necessary corporate and, if required, stockholder action, require no
consent or approval of, registration or filing with, or other action by, any
governmental authority (except for the recording or filing of this Mortgage and
UCC financing statements) and do not violate any applicable law or regulation or
the charter, by-laws or other organizational documents of the Mortgagor or any
order of any governmental authority, will not violate or result in a default
under any Legal Requirement or any indenture, agreement or other instrument
binding upon the Mortgagor or their respective assets, or give rise to a right
thereunder to require any payment to be made by the Mortgagor, and will not
result in the
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creation or imposition of any Lien on any asset of the Mortgagor (other than the
Lien of this Mortgage on the Mortgaged Property); (iv) this Mortgage constitutes
a valid, binding and enforceable first Lien on the Mortgaged Property subject
only to the Permitted Liens; (v) this Mortgage constitutes a valid and binding
agreement of the Mortgagor, enforceable in accordance with its terms, except as
the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization or moratorium or other similar laws relating to the enforcement
of creditors' rights generally and by general equitable principles; and (vi)
upon the recording of this Mortgage in the office specified in Exhibit C for
such recording and the filing of the UCC-1 financing statement/s listed in
Exhibit C in the office/s specified in Exhibit C for such filing, this Mortgage
shall constitute a valid, binding and enforceable first priority Lien on the
Mortgaged Property that is real property under applicable law and a valid,
binding and enforceable first priority perfected security interest on the
Mortgaged Property that is governed by the UCC.
(b) The Mortgagor shall cause the representations and warranties in
Section 2.01(a) and 2.05 to be true and correct in each and every respect and
forever preserve, protect, warrant and defend (i) its estate, right, title and
interest in and to the Mortgaged Property, (ii) the validity, enforceability and
priority of the Lien of this Mortgage on the Mortgaged Property, and (iii) the
right, title and interest of the Mortgagee and any purchaser at any sale of the
Mortgaged Property hereunder or relating hereto, in each case against all other
Liens and claims whatsoever, subject only to the Permitted Liens.
(c) The Mortgagor shall immediately upon the execution, acknowledgment
and delivery of the Mortgage record, register and file this Mortgage and any
financing statements or other documents which are necessary or reasonably
requested by the Mortgagee to effectuate, complete, perfect, continue and
preserve the Lien of this Mortgage as a first Lien on the Mortgaged Property,
subject only to the Permitted Liens. The Mortgagor shall (i) promptly correct
any defect or error which may be discovered in this Mortgage or any financing
statement or other document relating hereto; and (ii) promptly execute,
acknowledge, deliver, record, register and file and re-record, re-register and
re-file this Mortgage and any financing statements or other documents which are
necessary or reasonably requested by the Mortgagee from time to time (all in
form and substance reasonably satisfactory to the Mortgagee) in order (A) to
effectuate, complete, perfect, continue or preserve the Lien of this Mortgage as
a first Lien on the Mortgaged Property, whether now owned or hereafter acquired,
subject only to the Permitted Liens, or (B) to effectuate, complete, perfect,
continue or preserve any right, power or privilege granted or intended to be
granted to the Mortgagee hereunder or otherwise accomplish the purposes of this
Mortgage. Without limiting the foregoing, the Mortgagor shall not change its
name, identity or corporate structure in any manner, the location of its chief
executive office or chief place of business, or the location where it keeps or
holds any Mortgaged Property governed by the UCC or any records relating
thereto, unless it shall have given the Mortgagee prior notice thereof pursuant
to, and delivered an Opinion of Counsel with respect thereto in accordance with,
Section 5(e) of the Security Agreement as if said Section 5(e) referred to this
sentence in place of the references to Sections 5(a) and 5(b) therein.
(d) To the fullest extent permitted under applicable law, the
Mortgagor hereby authorizes the Mortgagee to execute and file financing
statements contemplated by subsection (c) of this Section or continuation
statements without the Mortgagor's signature appearing thereon.
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To the fullest extent permitted under applicable law, in the event the Mortgagor
does not execute, acknowledge, deliver, record, register and file and re-record,
re-register and re-file any document contemplated by subsection (c) of this
Section within fifteen (15) days after demand by the Mortgagee, the Mortgagor
hereby authorizes the Mortgagee to execute, acknowledge, deliver, record,
register and file and re-record, re-register and re-file the same as
attorney-in-fact on behalf of the Mortgagor.
(e) The Mortgagor shall pay when due or upon demand by the Mortgagee,
whichever is earlier, all recording, filing, registration and recording fees,
all federal, state, county and stamp, recording, registration, filing and other
taxes, duties, imposts, assessments and charges, and all expenses of the
Mortgagee (including reasonable attorneys' fees and disbursements), with respect
to the preparation, execution, acknowledgment, delivery, recording, registration
and filing and re-recording, re-registration and re-filing of this Mortgage and
any other document contemplated by subsection (c) of this Section.
(f) Nothing herein shall be construed to subordinate the Lien of this
Mortgage to any Permitted Lien to which the Lien of this Mortgage is not
otherwise subordinate.
SECTION 2.2. SECURED OBLIGATIONS. The Mortgagor shall duly and
punctually pay, perform and observe the Secured Obligations binding upon the
Mortgagor in accordance with the terms and provisions of the Financing
Documents.
SECTION 2.3. IMPOSITIONS. The Mortgagor shall (i) subject to Section
2.06, duly and punctually pay all Impositions prior to the delinquency date
thereof, PROVIDED that if any such Imposition may be paid in installments
(whether or not interest shall accrue on the unpaid balance thereof), the
Mortgagor may pay the same in installments (together with any accrued interest
payable) before the delinquency date thereof; (ii) subject to Section 2.06, duly
and punctually file all returns and other statements required to be filed with
respect to any Imposition prior to the delinquency date thereof; (iii) promptly
notify the Mortgagee of the receipt by the Mortgagor of any notice of default in
the payment of any Imposition or in the filing of any return or other statement
relating to any Imposition and simultaneously furnish to the Mortgagee a copy of
such notice of default; (iv) not make deduction from or claim any credit on any
Secured Obligation by reason of any Imposition (and to the fullest extent
permitted under applicable law the Mortgagor hereby irrevocably waives any right
to do so); and (iv) upon request, promptly deliver to the Mortgagee (A) a
certificate of the Mortgagor evidencing that the Mortgagor has complied with the
provisions of this Section, accompanied to the extent required by the Mortgagee
by copies of official receipts evidencing the payment of the Impositions, and
(B) such other information and documents with respect to the matters referred to
in this Section as the Mortgagee shall reasonably request.
SECTION 2.4. LEGAL AND INSURANCE REQUIREMENTS. (a) The Mortgagor
represents and warrants that (i) as of the date hereof, the Property and the use
and operation thereof comply in all material respects with all Legal
Requirements and Insurance Requirements; (ii) there is no material default under
any Legal Requirement or Insurance Requirement; and (iii) the execution,
delivery and performance of this Mortgage will not contravene in any material
respect any provision of or constitute a material default under any Legal
Requirement or Insurance Requirement.
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(b) The Mortgagor shall (i) subject to Section 2.06, duly and
punctually comply in all material respects with all Legal Requirements and
Insurance Requirements; (ii) procure, maintain and, subject to Section 2.06,
duly and punctually comply in all material respects with all Permits required
for any construction, reconstruction, repair, alteration, addition, improvement,
maintenance, management, use and operation of the Property as then conducted;
(iii) promptly notify the Mortgagee of the receipt by the Mortgagor of any
notice of default regarding any Legal Requirement or Insurance Requirement or
any possible or actual termination of any Permit or Insurance Policy and furnish
to the Mortgagee a copy of such notice of default or termination, except with
respect to any default or termination which would not have a material adverse
effect on the use or operation of the Property as then conducted; (iv) promptly
after obtaining knowledge thereof notify the Mortgagee of any condition which,
with or without the giving of notice or the passage of time or both, would
constitute a default regarding any Legal Requirement or Insurance Requirement or
result in a termination of any Permit or Insurance Policy, except with respect
to any default or termination which would not have a material adverse effect on
the use or operation of the Property as then conducted, and the action being
taken to remedy such condition; (v) upon request, promptly furnish to the
Mortgagee a copy of any Permit obtained by the Mortgagor with respect to the
Property after the date hereof; and (vi) upon request, promptly deliver to the
Mortgagee (A) a certificate of the Mortgagor evidencing that the Mortgagor has
complied with the provisions of this Section, and (B) such other information and
documents with respect to the matters referred to in this Section as the
Mortgagee shall reasonably request.
SECTION 2.5. STATUS AND CARE OF THE PROPERTY. The Mortgagor represents
and warrants that, except in any case as disclosed by the Mortgagor to the
Mortgagee concurrently with the execution and delivery of this Mortgage in a
writing making reference to this provision of this Mortgage, (i) the Property is
served by all necessary water, sanitary and storm sewer, drainage, electric,
steam, gas, telephone and other utilities and utility facilities, which
facilities have capacities which are sufficient to serve the current use and
occupancy of the Property; (ii) the Property has legal access to all streets and
roads necessary for and sufficient to serve the use and operation of the
Property, including as appropriate access over properly granted, perpetual,
private easements, rights of way or servitudes that are specifically included in
the Mortgaged Property; (iii) the Permitted Encumbrances do not materially
interfere with the use, enjoyment and operation of the Mortgaged Property; (iv)
the Improvements located on the Land do not materially interfere with any of the
Permitted Encumbrances; (v) the Improvements located on the Land do not
materially encroach on any other land, and the improvements located on any other
land do not materially encroach on the Land; (vi) the maintenance, use and
operation of the Improvements on the Land do not depend on any other land or any
improvements located on any other land, and the maintenance, use and operation
of the improvements on any other land do not depend on the Land or the
Improvements located on the Land except as provided for by easements benefitting
and burdening the Land; (vii) other than as shown on the survey furnished to the
Mortgagee, the Improvements are not located in an area designated as "flood
prone" (as defined under the regulations adopted under the National Flood
Insurance Program); and to the extent any of the Improvements are located (in
whole or part) in an area designated as "flood prone," the Mortgagor shall
maintain in full force and effect flood insurance under the National Flood
Insurance Program as provided in Section 3.01; and (viii) upon request, shall
promptly deliver to the Mortgagee (A) evidence reasonably satisfactory to the
Mortgagee that the Mortgagor has complied with the
14
provisions of this Section and (B) such other information and documents with
respect to the matters referred to in this Section as the Mortgagee shall
reasonably request.
SECTION 2.6. PERMITTED CONTESTS. After prior notice to the Mortgagee,
the Mortgagor may contest, by appropriate proceedings conducted in good faith
and with due diligence, any Legal Requirement, any Insurance Requirement, any
Imposition or Lien therefor on the Mortgaged Property or any interest therein or
any Lien of any laborer, mechanic, materialman, supplier or vendor on the
Mortgaged Property or any interest therein, PROVIDED that (i) no Event of
Default has occurred and is continuing; (ii) no Mortgaged Property or interest
therein is in danger of being sold, forfeited or lost, nor is the priority of
the Lien of the Mortgagee at risk, as a result of such contest or proceedings;
(iii) in the case of any Legal Requirement, the Mortgagee and the other Secured
Parties are not in danger of any criminal or material civil penalty or any other
liability for failure to comply therewith and no Mortgaged Property or interest
therein is subject to the imposition of any Lien as a result of such failure
which is not properly contested in accordance with this Section; (iv) in the
case of any Insurance Requirement, no Insurance Policy or coverage is in danger
of being forfeited or lost as a result of such contest or proceedings, unless
replaced; and (v) in the case of (A) any Lien of a laborer, mechanic,
materialman, supplier or vendor, (B) any Imposition or Lien therefor or (C) any
other Lien, such proceedings suspend the foreclosure of such Lien or any other
collection thereof from the Mortgaged Property; and PROVIDED FURTHER that the
Mortgagor establishes any reserve or other appropriate provision required with
respect to such contest under generally accepted accounting principles
consistently applied. It is agreed that the failure to comply with any such
Legal Requirement or Insurance Requirement, to pay any such Imposition or to
discharge any such Lien being contested pursuant to this Section during such
contest shall not constitute an Event of Default, PROVIDED that the Mortgagor is
in compliance with this Section. Upon request, the Mortgagor shall promptly
deliver to the Mortgagee (x) a certificate of the Mortgagor describing in detail
reasonably satisfactory to the Mortgagee the contests pending as of the date
thereof and evidencing that the Mortgagor has complied with the provisions of
this Section with respect thereto and (y) such other information and documents
with respect to the contests conducted pursuant to this Section as the Mortgagee
shall reasonably request.
SECTION 2.7. LIENS. The Mortgagor shall not create or permit to be
created and, subject to Section 2.06, within 30 days after receipt of notice or
knowledge thereof, shall discharge or cause to be discharged, any Lien on the
Mortgaged Property other than Permitted Liens, in each case (i) whether
voluntarily or involuntarily created, and (ii) whether or not subordinated
hereto. The provisions of this Section shall apply to each and every Lien (other
than Permitted Liens) on the Mortgaged Property, regardless of whether or not a
consent to, or waiver of a right to consent to, any other Lien thereon has been
previously obtained in accordance with the provisions of the Financing
Documents. Nothing herein shall obligate the Mortgagor to remove any inchoate
statutory Lien in respect of obligations not yet due and payable.
SECTION 2.8. TRANSFER. The Mortgagor shall not Transfer, or suffer any
Transfer of, the Mortgaged Property or any part thereof or interest therein,
except for any sale of the Mortgaged Property permitted under the Credit
Agreement and made in compliance with the Credit Agreement, PROVIDED that, upon
any sale of the Mortgaged Property permitted under the Credit Agreement,
arrangements satisfactory to the Administrative Agent shall be entered into in
order to transfer to the Administrative Agent a portion of such cash proceeds
sufficient to make the prepayment of Loans, if any, as required by Section
2.17(b) of the Credit Agreement. The
15
provisions of this Section shall apply to each and every Transfer of the
Mortgaged Property or any interest therein, regardless of whether or not a
consent to, or waiver of a right to consent to, any other Transfer thereof has
been previously obtained in accordance with the provisions of the Financing
Documents.
ARTICLE 3
INSURANCE, CASUALTY AND CONDEMNATION
SECTION 3.1. INSURANCE. (a The Mortgagor shall maintain in full force
and effect the following Insurance Policies with respect to the Property (and
shall pay the Insurance Premiums for such Insurance Policies as and when due),
all such Insurance Policies to be maintained with financially sound and
responsible insurance companies and be in form and substance, including the
policy limits and deductibles, approved by the Mortgagee (which approvals shall
not be unreasonably withheld):
(i) "all risk" property insurance in an amount not less than the
full replacement value of the Property and sufficient to
prevent the Mortgagor from being a co-insurer of any loss
under the policy, including difference-in-conditions coverage
(including boiler, machinery, sprinkler, flood and earthquake
coverages), and including business interruption and extra
expense coverages, and including, when any alteration or
Restoration of the Property is in progress, builder's risk
coverage on a completed value, non-reporting basis with
extended coverage and soft-cost expense coverage;
(ii) to the extent any of the Improvements are located (in whole or
part) in an area designated as "flood prone" (as defined under
the regulations adopted under the National Flood Insurance
Program), flood insurance under the National Flood Insurance
Program or substantially equivalent thereto in the amount
required under, and meeting the other requirements of,
applicable law;
(iii) public liability insurance (including products/completed
operations liability coverages) having a combined single limit
of not less than $80,000,000 for bodily injury, death and
property damage, which may be provided by basic, umbrella and
excess liability policies aggregating said combined single
limit;
(iv) workers' compensation and employer's liability insurance as
required in the State in which the Property is located or a
self-insurance program as permitted under applicable law in
the State in which the Property is located; and
(v) such other insurance as the Required Lenders may reasonably
request pursuant to Section 5.03(b)(iii) of the Credit
Agreement.
The physical damage insurance maintained with respect to the Property shall (i)
bear the New York standard non-contributory mortgagee endorsement (or the
equivalent thereto) naming the
16
Mortgagee as loss payee and (ii) provide that all property losses insured
against involving a claim or claims with respect to a single Casualty in excess
of $100,000 shall be adjusted by the Mortgagor, subject to the Mortgagee's
rights pursuant to Section 3.03 hereof and the Security Agreement. The liability
insurance maintained with respect to the Property shall name the Mortgagee and
the other Secured Parties as additional insureds. All insurance maintained by
the Mortgagor with respect to the Property shall provide that no cancellation or
material change thereof shall be effective until at least 30 days after receipt
by the Mortgagee of written notice thereof and all losses shall be payable
notwithstanding any foreclosure or other action or proceeding taken pursuant to
this Mortgage.
(b) The Mortgagor shall furnish to the Mortgagee from time to time (i)
not later than 15 days prior to the expiration date of each policy required to
be maintained by the Mortgagor hereunder, an insurance certificate or
certificates executed by the insurer or its authorized agent satisfactory to the
Mortgagee in its reasonable discretion evidencing that the new or extended
policy is in force, together with evidence satisfactory to the Mortgagee in its
reasonable discretion of the payment of the premium therefor or, if the premium
is not then due, the due date thereof, and (ii) upon Mortgagee's request, not
later than the day on which the premium for each policy required to be
maintained by the Mortgagor hereunder is due, evidence satisfactory to the
Mortgagee in its reasonable discretion of the payment of such premium. If the
Mortgagor fails to maintain the Insurance Policies required to be maintained
under this Section (or to pay the Insurance Premiums for such Insurance Policies
as and when due), the Mortgagee shall have the right (but not the obligation) to
obtain such Insurance Policies and pay the Insurance Premiums therefor. If the
Mortgagee obtains such Insurance Policies or pays the premiums therefor, upon
demand, the Mortgagor shall reimburse the Mortgagee for its reasonable expenses
in connection therewith (including reasonable attorneys' fees and expenses),
together with interest thereon from the date of demand for each day until paid
at the Post-Default Rate for Base Rate Loans.
(c) The Mortgagor may effect such coverage under subsection (a) of
this Section under blanket insurance policies covering other properties of the
Mortgagor or its Subsidiaries, PROVIDED that (i) any such blanket insurance
policy shall specify therein, or the insurer thereunder shall certify to the
Mortgagee, (A) the maximum amount of the total insurance afforded by the blanket
policy allocated to the Property, and (B) any sublimits in such blanket policy
applicable to the Property, which sublimits shall not be less than the amounts
required pursuant to this Section, (ii) any such blanket insurance policy shall
comply in all respects with the other provisions of this Section and (iii) the
protection afforded under any such blanket insurance policy shall be no less
than that which would have been afforded under a separate policy relating only
to the Property.
(d) The Mortgagor shall not maintain additional or separate insurance
concurrent in form or contributing in the event of loss with the insurance
required under this Section, unless (i) the policies providing such additional
or separate insurance are submitted to the Mortgagee for its approval, which
approval shall not be unreasonably withheld, (ii) the insurers under such
policies and the terms thereof are approved by the Mortgagee, which approval
shall not be unreasonably withheld and (iii) the Mortgagee and the other Secured
Parties are included in such policies as loss payees or additional insureds.
17
SECTION 3.2. CASUALTY AND CONDEMNATION. (a The Mortgagor represents and
warrants that, as of the date hereof, except in any case as disclosed by the
Mortgagor to the Mortgagee concurrently with the execution and delivery of this
Mortgage in a writing making reference to this provision of this Mortgage, (i)
there is no Casualty or Condemnation affecting in any material respect the use
and occupancy of the Property, (ii) there are no negotiations or proceedings
presently pending in connection with a Condemnation and (iii) to the knowledge
of the Mortgagor, no Condemnation is proposed or threatened.
(b) (i) If any Casualty occurs, the Mortgagor shall (A) immediately
take such action as may be necessary or appropriate to preserve the undamaged
portion of the Property and protect against personal injury or property damage,
and (B) promptly give notice thereof to the Mortgagee describing in detail
reasonably satisfactory to the Mortgagee the Casualty and the work and estimated
cost of Restoring the Property.
(ii) If any Condemnation occurs or is proposed or threatened, the
Mortgagor shall (A) promptly take all actions reasonably necessary or
appropriate to preserve its interest in the Property and (B) promptly give
notice thereof to the Mortgagee describing in detail reasonably satisfactory to
the Mortgagee the Condemnation or proposed or threatened Condemnation and the
proposed actions to preserve its interest in the Property.
(c) If any Casualty or Condemnation occurs, PROVIDED the applicable
Casualty Proceeds are made available to the Mortgagor, unless the Required
Lenders shall otherwise agree, the Mortgagor shall promptly commence and
diligently pursue to completion the Restoration of the Property, subject to
Unavoidable Delays, whether or not the Casualty Proceeds with respect thereto
are sufficient for such purpose; and (i) such Restoration shall be effected with
due diligence, in a good and workmanlike manner, in compliance with all
applicable Legal Requirements and Insurance Requirements, (ii) such Restoration
shall be conducted under the supervision of an architect or engineer if
customary for such Restoration, (iii) such Restoration shall be located wholly
on the Land and, except as provided for by existing easements benefitting or
burdening the Land, unless consented to by the Mortgagee and by the owner of the
other property, shall be independent of and not connected with improvements
located on other property, (iv such Restoration shall be promptly and fully paid
for by the Mortgagor, except to the extent that any such payment is being
contested in good faith pursuant to Section 2.06, and (v the Mortgagor shall
procure prior to the commencement of any such Restoration, and maintain
throughout the continuation of the work involved, such insurance and performance
and payment bonds as are customary for the type of construction and work
involved in Waltham, MA.
(d) Upon request, the Mortgagor shall promptly deliver to the
Mortgagee evidence reasonably satisfactory to the Mortgagee that the Mortgagor
has complied with the provisions of this Article and such information and
documents with respect to the matters referred to in this Article as the
Mortgagee shall reasonably request.
SECTION 3.3. CASUALTY PROCEEDS. If any Casualty or Condemnation occurs,
(i) the Mortgagor shall promptly make claim for the Casualty Proceeds with
respect thereto and diligently pursue to conclusion its claim for such Casualty
Proceeds and any suit, action or other proceeding necessary or appropriate to
obtain payment of such proceeds; and (ii) the Mortgagor shall pay all Casualty
Proceeds with respect to any Casualty or Condemnation, or cause the same to be
paid,
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directly and immediately to the Mortgagee for deposit in the Casualty Proceeds
Account under Section 12 of the Security Agreement, to be held, applied and
disbursed pursuant to the provisions of Section 12 of the Security Agreement. In
the event that there are any Casualty Proceeds in excess of the cost of
Restoration as reasonably estimated by the Mortgagee or remaining after
completion and payment of the cost of Restoration, such excess Casualty Proceeds
shall be deposited in the Cash Proceeds Account under Section 12 of the Security
Agreement, to be further held, applied and disbursed pursuant to the provisions
of Section 12 of the Security Agreement.
ARTICLE 4
CERTAIN SECURED OBLIGATIONS
SECTION 4.1. REVOLVING LOANS, ETC. (a The Secured Obligations secured
by this Mortgage include (i) revolving Loans in the aggregate maximum principal
or face amount of $350,000,000, (ii) obligations of the Mortgagor with respect
to letters of credit, (iii) obligations of the Mortgagor pursuant to Hedging
Agreements, and (iv) any other obligations designated by the Mortgagor as
additional Secured Obligations pursuant to Section 2.16(d) of the Credit
Agreement, which are advanced, paid and readvanced from time to time.
Notwithstanding the amount of the Loans and such other Secured Obligations
outstanding at any particular time, the Mortgagor acknowledges and agrees that
this Mortgage secures the total amount of the Loans and other Secured
Obligations outstanding at any particular time up to the Maximum Secured Amount.
(b) While this Mortgage is in effect, the Mortgagor shall deliver to
the Mortgagee, within 10 Business Days after the end of each Fiscal Quarter of
each Fiscal Year of the Mortgagor, a bring-down title commitment (but not title
insurance) or report from the title company that rendered the title commitment
delivered to the Administrative Agent at the time of the recording of this
Mortgage (or another title company satisfactory to the Administrative Agent in
its reasonable discretion), or a bring-down letter from an attorney satisfactory
to the Administrative Agent in its reasonable discretion, effective as of the
last Business Day of such Fiscal Quarter or a Business Day that is not later
than five Business Days after the last Business Day of such Fiscal Quarter, in
form and substance satisfactory to the Administrative Agent in its reasonable
discretion, evidencing whether or not any Liens or title matters have been filed
with respect to the Mortgaged Property since the last to occur of the effective
date of (x) the title commitment delivered to the Administrative Agent at the
time of the recording of this Mortgage and (y) the most recent previous title
commitment, report or letter delivered pursuant to this Section 4.01(b).
SECTION 4.2. INTEREST AFTER DEFAULT. If, pursuant to the provisions of
this Mortgage, the Mortgagee shall make any payment on behalf of the Mortgagor
(including any payment made by the Mortgagee pursuant to Section 3.01 or 5.10)
or shall incur hereunder any expense for which the Mortgagee is entitled to
reimbursement pursuant to the provisions of this Mortgage or any other Financing
Documents, such Secured Obligation shall be repayable on demand, together with
interest from the date of demand for each day until paid at the Post-Default
Rate for Base Rate Loans. Such interest, and any other interest on the Secured
Obligations at a Post-Default Rate pursuant to the provisions of the Financing
Documents, shall accrue through the date paid
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notwithstanding any intervening foreclosure, exercise of the power of sale or
other sale or judgment of foreclosure and be part of the Secured Obligations.
SECTION 4.3. CHANGES IN THE LAWS REGARDING TAXATION. If after the date
hereof there is enacted any applicable law deducting from the value of the
Property for the purpose of taxation the Lien of any Collateral Document or
changing in any way the applicable law for the taxation of mortgages, deeds of
trust or other Liens or obligations secured thereby, or the manner of collection
of such taxes, so as to adversely affect this Mortgage, the Secured Obligations
or any Secured Party, upon demand by the Mortgagee or any other affected Secured
Party and to the fullest extent permitted under applicable law, the Mortgagor
shall pay all taxes, assessments or other charges resulting therefrom or shall
reimburse such Secured Party for all such taxes, assessments or other charges
which such Secured Party is obligated to pay as a result thereof.
SECTION 4.4. INDEMNIFICATION. The Mortgagor shall protect, indemnify,
hold harmless and defend each of the Mortgagee and the other Secured Parties
from and against all liabilities, obligations, losses, damages, penalties,
claims, actions, suits, proceedings, judgments, costs and expenses of any kind
whatsoever (including reasonable attorneys' fees and expenses) (collectively
"CLAIMS") which may be imposed on, incurred by or asserted against any Secured
Party by reason of , as a result of, on account of or in connection with (i) the
Mortgagee's exercise of any of its rights and remedies hereunder, (ii) any
accident, injury to or death of persons or loss of or damage to property
occurring in, on or about the Mortgaged Property or any part thereof or on the
adjoining sidewalks, curbs, adjacent property or adjacent parking areas, street
or ways, (iii) any failure on the part of the Mortgagor to perform or comply
with any of the provisions of this Mortgage, any Legal Requirement or any
Insurance Requirement, (iv) any release or disposal on or from the Property or
presence on the Property of any Hazardous Substances, (v) the performance of any
labor or services or the furnishing of any materials or other property in
respect of the Mortgaged Property or any part thereof, and (vi) any conduct or
misconduct of the Mortgagor, any tenant or other occupant of any of the
Mortgaged Property or any of their respective agents, contractors,
subcontractors, servants, employees, licensees or invitees; PROVIDED that any
claims caused by the willful misconduct or gross negligence of any Secured Party
as determined by a court of competent jurisdiction shall be excluded from the
foregoing indemnification of such Secured Party. Any amount payable under this
Section shall be payable on demand, together with interest from the date of
demand for each day until paid at the Post-Default Rate for Base Rate Loans. All
such amounts and interest shall be part of the Secured Obligations. The
obligations of the Mortgagor under this Section shall survive the release or
termination of this Mortgage as to any matter arising out of any event occurring
prior to such release or termination.
ARTICLE 5
DEFAULTS, REMEDIES AND RIGHTS
SECTION 5.1. EVENTS OF DEFAULT. Any Event of Default under the Credit
Agreement, as well as any breach of the STATUTORY CONDITION, shall constitute an
"EVENT OF DEFAULT" under this Mortgage. All notice and cure periods provided in
the Credit Agreement and the other
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Financing Documents shall run concurrently with any notice or cure periods
provided under applicable law.
SECTION 5.2. REMEDIES. (a THIS MORTGAGE IS UPON THE STATUTORY CONDITION
FOR ANY BREACH OF WHICH THE MORTGAGEE SHALL HAVE THE STATUTORY POWER OF SALE. If
an Event of Default has occurred and is continuing, the Mortgagee shall have the
right and power to exercise any of the following remedies and rights, subject to
mandatory provisions of applicable law, to wit:
(i) the STATUTORY POWER OF SALE;
(ii) to institute a proceeding or proceedings, by
advertisement, judicial process or otherwise as provided under
applicable law, for the complete or partial foreclosure of this
Mortgage or the complete or partial sale of the Mortgaged Property
under the power of sale hereunder or under any applicable provision of
applicable law; or
(iii) to sell the Mortgaged Property, and all estate, right,
title, interest, claim and demand of the Mortgagor therein and
thereto, and all rights of redemption thereof, pursuant to the
STATUTORY POWER OF SALE, at one or more sales, as an entirety or in
parcels, with such elements of real or personal property, at such time
and place and upon such terms as the Mortgagee may deem expedient or
as may be required under applicable law, and in the event of a sale
hereunder or under any applicable provision of applicable law of less
than all of the Mortgaged Property, this Mortgage shall continue as a
Lien on the remaining Mortgaged Property; or
(iv) to institute a suit, action or proceeding for the
specific performance of any of the provisions of this Mortgage; or
(v) to be entitled to the appointment of a receiver,
supervisor, trustee, liquidator, conservator or other custodian (a
"RECEIVER") of the Mortgaged Property, to the fullest extent permitted
under applicable law, as a matter of right, without notice to the
Mortgagor, and without regard to, or the necessity to disprove, the
adequacy of the security for the Secured Obligations or the solvency
of the Mortgagor or any other Person obligated therefor; and the
Mortgagor hereby, to the full extent permitted under applicable law,
irrevocably waives such necessity and consents to such appointment of
such Receiver without notice; and said Receiver shall be vested with
the fullest powers permitted under applicable law, including those
under subsection (a)(v) of this Section; or
(vi) to enter upon the Property, by the Mortgagee or a
Receiver (whichever is the Person exercising the rights under this
clause), and, to the extent permitted under applicable law, exclude
the Mortgagor and its managers, employees, contractors, agents and
other representatives therefrom in accordance with applicable law,
without liability for trespass, damages or otherwise, and take
possession of all other Mortgaged Property and all books, records and
accounts relating thereto, and upon demand the Mortgagor shall
surrender possession of the Property, the other Mortgaged Property and
such books, records and accounts to the Person exercising the rights
under this clause; and having and holding the same, the Person
exercising the rights under this clause may use, operate,
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manage, preserve, control and otherwise deal therewith and conduct the
business thereof, either personally or by its managers, employees,
contractors, agents or other representatives, without interference
from the Mortgagor or its managers, employees, contractors, agents and
other representatives; and, upon each such entry and from time to time
thereafter, at the expense of the Mortgagor and the Mortgaged
Property, without interference by the Mortgagor or its managers,
employees, contractors, agents and other representatives, the Person
exercising the rights under this clause may, as such Person deems
expedient, (A) insure or reinsure the Property, (B) make all necessary
or proper repairs, renewals, replacements, Restorations, alterations,
additions, betterments and improvements to the Property and (C) in
such Person's own name or, at the option of such Person, in the
Mortgagor's name, exercise all rights, powers and privileges of the
Mortgagor with respect to the Mortgaged Property, including the right
to enter into Leases with respect to the Property, including Leases
extending beyond the time of possession by the Person exercising the
rights under this clause; and the Person exercising the rights under
this clause shall not be liable to account for any action taken
hereunder, other than for Rents actually received by such Person, and
shall not be liable for any loss sustained by the Mortgagor resulting
from any failure to let the Property or from any other act or omission
of such Person, except to the extent such loss is caused by such
Person's own willful misconduct or gross negligence; or
(vii) with or, to the fullest extent permitted under
applicable law, without entry upon the Property, in the name of the
Mortgagee or a Receiver (whichever is the Person exercising the rights
under this clause) or, at such Person's option, in the name of the
Mortgagor, to collect, receive, xxx for and recover all Rents and
proceeds of or derived from the Mortgaged Property, and after
deducting therefrom all costs, expenses and liabilities of every
character incurred by the Person exercising the rights under this
clause in collecting the same and in using, operating, managing,
preserving and controlling the Mortgaged Property and otherwise in
exercising the rights under subsection (a)(v) of this Section or any
other rights hereunder, including all amounts necessary to pay the
Impositions, the Rents, the Insurance Premiums and other costs,
expenses and liabilities relating to the Property, as well as
compensation for the services of such Person and its managers,
employees, contractors, agents or other representatives, to apply the
remainder as provided in Section 5.06; or
(viii) to take any action with respect to any Mortgaged
Property permitted under the UCC; or
(ix) to take any other action, or pursue any other remedy or
right, as the Mortgagee may have under applicable law, including the
right to foreclosure through court action, and the Mortgagor does
hereby grant the same to the Mortgagee.
(b) To the fullest extent permitted under applicable law:
(i) each remedy or right hereunder shall be in addition to,
and not in limitation of, any other remedy or right hereunder, under
any other Financing Document or now or hereafter existing at law or in
equity;
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(ii) every remedy or right hereunder, under any other
Financing Document or under applicable law may be exercised
concurrently or independently and whenever and as often as deemed
appropriate by the Mortgagee to the fullest extent permitted under
applicable law;
(iii) no failure to exercise or delay in exercising any
remedy or right hereunder, under any other Financing Document or under
applicable law shall be construed as a waiver of any Default or other
occurrence hereunder or under any other Financing Document;
(iv) no waiver of, failure to exercise or delay in
exercising any remedy or right hereunder, under any other Financing
Document or under applicable law upon any Default or other occurrence
hereunder or under any other Financing Document shall be construed as
a waiver of, or otherwise limit the exercise of, such remedy or right
upon any other or subsequent Default or other occurrence hereunder or
under any other Financing Document;
(v) no single or partial exercise of any remedy or right
hereunder, under any other Financing Document or under applicable law
upon any Default or other occurrence hereunder or under any other
Financing Document shall preclude or otherwise limit the exercise of
any other remedy or right hereunder, under any other Financing
Document or under applicable law upon such Default or occurrence or
upon any other or subsequent Default or other occurrence hereunder or
under any other Loan Document;
(vi) the acceptance by the Mortgagee or any other Secured
Party of any payment less than the amount of the Secured Obligation in
question shall be deemed to be an acceptance on account only and shall
not be construed as a waiver of any Default hereunder or under any
other Financing Document with respect thereto; and
(vii) the acceptance by the Mortgagee or any other Secured
Party of any payment of, or on account of, any Secured Obligation
shall not be deemed to be a waiver of any Default or other occurrence
hereunder or under any other Financing Document with respect to any
other Secured Obligation.
(c) If the Mortgagee has proceeded to enforce any remedy or right
hereunder or with respect hereto by foreclosure, sale, entry or otherwise, it
may compromise, discontinue or abandon such proceeding for any reason without
notice to the Mortgagor or any other Person (except other Secured Parties to the
extent required by the Financing Documents); and, if any such proceeding shall
be discontinued, abandoned or determined adversely for any reason, the Mortgagor
and the Mortgagee shall retain and be restored to their former positions and
rights hereunder with respect to the Mortgaged Property, subject to the Lien
hereof, except to the extent any such adverse determination specifically
provides to the contrary.
(d) To the fullest extent permitted under applicable law, for the
purpose of carrying out any provisions of Sections 5.02(a)(vi), 5.02(a)(vii),
5.05, 5.07 or 5.10 or any other provision
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hereunder authorizing the Mortgagor or any other Person to perform any action on
behalf of the Mortgagor, the Mortgagor hereby irrevocably appoints the
Mortgagee, a Receiver appointed pursuant to Section 5.02(a)(v) or any other
Person designated by the Mortgagee or a Receiver as the attorney-in-fact of the
Mortgagor (with a power to substitute any other Person in its place as such
attorney-in-fact) to act in the name of the Mortgagor or, at the option of the
Person appointed to act under this subsection, in such Person's own name, to
take the action authorized under Sections 5.02(a)(vi), 5.02(a)(vii), 5.05, 5.07
or 5.10 or such other provision, and to execute, acknowledge and deliver any
document in connection therewith or to take any other action incidental thereto
as the Person appointed to act under this subsection shall deem appropriate in
its discretion; and the Mortgagor hereby irrevocably authorizes and directs any
other Person to rely and act on behalf of the foregoing appointment and a
certificate of the Person appointed to act under this subsection that such
Person is authorized to act under this subsection.
SECTION 5.3. WAIVERS BY THE MORTGAGOR. To the fullest extent permitted
under applicable law, the Mortgagor shall not assert, and hereby irrevocably
waives, any right or defense the Mortgagor may have under any statute or rule of
law or equity now or hereafter in effect relating to (i) appraisement,
valuation, homestead exemption, extension, moratorium, stay, statute of
limitations, redemption, marshaling of the Mortgaged Property or the other
assets of the Mortgagor, sale of the Mortgaged Property in any order or notice
of deficiency or intention to accelerate any Secured Obligation; (ii) impairment
of any right of subrogation or reimbursement; (iii) any requirement that at any
time any action must be taken against any other Person, any portion of the
Mortgaged Property or any other asset of the Mortgagor or any other Person; (iv)
any provision barring or limiting the right of the Mortgagee to sell any
Mortgaged Property after any other sale of any other Mortgaged Property or any
other action against the Mortgagor or any other Person; (v) any provision
barring or limiting the recovery by the Mortgagee of a deficiency after any sale
of the Mortgaged Property; (vi) any other provision of applicable law (including
any provision relating to decedents' estates) which might defeat, limit or
adversely affect any right or remedy of the Mortgagee or the holders of the
Secured Obligations under or with respect to this Mortgage or the other
Collateral Documents as it relates to any Trust Property; or (vii) the right of
the Mortgagee to foreclose this Mortgage in its own name as Collateral Agent on
behalf of all of the Secured Parties by judicial action as the real party in
interest without the necessity of joining any other Secured Party. Nothing in
this Section shall be construed to limit any rights, including rights to notice,
afforded to the Mortgagor under this Mortgage or the other Financing Documents.
SECTION 5.4. JURISDICTION AND PROCESS. (a) To the fullest extent
permitted under applicable law, in any suit, action or proceeding arising out of
or relating to this Mortgage or any other Collateral Document as it relates to
any Mortgaged Property, the Mortgagor (i) irrevocably consents to the
non-exclusive jurisdiction of any state or federal court sitting in the State in
which the Property is located and irrevocably waives any defense or objection
which it may now or hereafter have to the jurisdiction of such court over, the
venue of such court for or the convenience of such court as the forum for any
such suit, action or proceeding; and (ii) irrevocably consents to the service of
(A) any process in any such suit, action or proceeding, or (B) any notice
relating to any sale, or the exercise of any other remedy by the Mortgagee
hereunder by mailing a copy of such process or notice by United States
registered or certified mail, postage prepaid, return receipt requested to the
Mortgagor at its address for notices pursuant to Section 7.03, such service to
be effective when such process or notice is mailed as aforesaid.
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(b) Nothing in this Section shall affect the right of the Mortgagee or
the Mortgagor to bring any suit, action or proceeding arising out of or relating
to this Mortgage or any other Financing Document in any court having
jurisdiction under the provisions of any other Financing Document or applicable
law or to serve any process, notice of sale or other notice in any manner
permitted by any other Financing Document or applicable law.
SECTION 5.5. SALES. Except as otherwise provided herein, to the fullest
extent permitted under applicable law, at the election of the Mortgagee, the
following provisions shall apply to any sale of the Mortgaged Property
hereunder, whether made pursuant to the power of sale hereunder, any judicial
proceeding or any judgment or decree of foreclosure or sale or otherwise:
(a) The Mortgagee or the court officer (whichever is the Person
conducting any sale) may conduct any number of sales from time to time. The
power of sale hereunder or with respect hereto shall not be exhausted by any
sale as to any part or parcel of the Mortgaged Property which is not sold,
unless and until the Secured Obligations shall have been paid in full, and shall
not be exhausted or impaired by any sale which is not completed or is defective.
Any sale may be as a whole or in part or parcels and, to the fullest extent
permitted under applicable law, the Mortgagor hereby waives its right to direct
the order in which the Mortgaged Property or any part or parcel thereof is sold.
(b) Any sale may be postponed or adjourned by public announcement at
the time and place appointed for such sale or for such postponed or adjourned
sale without further notice.
(c) After each sale, the Person conducting such sale shall execute and
deliver to the purchaser or purchasers at such sale a good and sufficient
instrument or instruments granting, conveying, assigning, transferring and
delivering all right, title and interest of the Mortgagor in and to the
Mortgaged Property sold and shall receive the proceeds of such sale up to the
Maximum Secured Amount and apply the same as provided in Section 5.06. The
Mortgagor hereby irrevocably appoints the Person conducting such sale as the
attorney-in-fact of the Mortgagor (with full power to substitute any other
Person in its place as such attorney-in-fact) to act in the name of the
Mortgagor or, at the option of the Person conducting such sale, in such Person's
own name, to make without warranty by such Person any conveyance, assignment,
transfer or delivery of the Mortgaged Property sold, and to execute, acknowledge
and deliver any instrument of conveyance, assignment, transfer or delivery or
other document in connection therewith or to take any other action incidental
thereto, as the Person conducting such sale shall deem appropriate in its
discretion; and the Mortgagor hereby irrevocably authorizes and directs any
other Person to rely and act upon the foregoing appointment and a certificate of
the Person conducting such sale that such Person is authorized to act hereunder.
Nevertheless, upon the request of such attorney-in-fact the Mortgagor shall
promptly execute, acknowledge and deliver any documentation which such
attorney-in-fact may require for the purpose of ratifying, confirming or
effectuating the powers granted hereby or any such conveyance, assignment,
transfer or delivery by such attorney-in-fact.
(d) Any statement of fact or other recital made in any instrument
referred to in Section 5.05(c) given by the Person conducting any sale as to the
non-payment of any Secured Obligation, the occurrence of any Event of Default,
the amount of the Secured Obligations due and payable, the request to the
Mortgagee to sell, the notice of the time, place and terms of sale and the
25
Mortgaged Property to be sold having been duly given, the refusal, failure or
inability of the Mortgagor to act, the appointment of any substitute or
successor agent or any other act or thing having been taken or done by the
Mortgagor, the Mortgagee or any other Person shall be taken as conclusive and
binding, absent manifest error, against all other Persons as evidence of the
truth of the facts so stated or recited. The Person conducting any sale may
appoint or delegate any other Person as agent to perform any act necessary or
incident to such sale, including the posting of notices and the conduct of such
sale, but in the name and on behalf of the Person conducting such sale.
(e) The receipt by the Person conducting any sale of the purchase
money paid at such sale shall be sufficient discharge therefor to any purchaser
of any Mortgaged Property sold, and no such purchaser, or its representatives,
grantees or assigns, after paying such purchase price and receiving such
receipt, shall be bound to see to the application of such purchase price or any
part thereof upon or for any trust or purpose of this Mortgage or the other
Financing Documents or, in any manner whatsoever, be answerable for any loss,
misapplication or nonapplication of any such purchase money or be bound to
inquire as to the authorization, necessity, expediency or regularity of such
sale.
(f) Subject to mandatory provisions of applicable law, any sale shall
operate to divest all of the estate, right, title, interest, claim and demand
whatsoever, whether at law or in equity, of the Mortgagor in and to the
Mortgaged Property sold, and shall be a perpetual bar both at law and in equity
against the Mortgagor and any and all Persons claiming such Mortgaged Property
or any interest therein by, through or under the Mortgagor.
(g) At any sale, the Mortgagee may bid for and acquire the Mortgaged
Property sold and, in lieu of paying cash therefor, may make settlement for the
purchase price by causing the Secured Parties to credit against the Secured
Obligations, including the expenses of the sale and the cost of any enforcement
proceeding hereunder, the amount of the bid made therefor to the extent
necessary to satisfy such bid.
(h) If the Mortgagor or any Person claiming by, through or under the
Mortgagor shall transfer or fail to surrender possession of the Mortgaged
Property, after the exercise by the Mortgagee or a Receiver of its remedies
under Section 5.02(a)(vi) or after any sale of the Mortgaged Property pursuant
hereto, then to the fullest extent permitted under applicable law, the Mortgagor
or such Person shall be deemed a tenant at sufferance of the purchaser at such
sale, subject to eviction by means of summary process for possession of land, or
subject to any other right or remedy available hereunder or under applicable
law.
(i) Upon any sale, it shall not be necessary for the Person conducting
such sale to have any Mortgaged Property being sold present or constructively in
its possession.
(j) If a sale hereunder shall be commenced by the Mortgagee, the
Mortgagee may at any time before the sale abandon the sale, and may institute
suit for the collection of the Secured Obligations or for the foreclosure of
this Mortgage; or if the Mortgagee shall institute a suit for collection of the
Secured Obligations or the foreclosure of this Mortgage, the Mortgagee may at
26
any time before the entry of final judgment in said suit dismiss the same and
sell the Mortgaged Property in accordance with the provisions of this Mortgage.
SECTION 5.6. PROCEEDS. Except as otherwise provided herein or required
under any mandatory provision of applicable law, the proceeds of any sale of, or
other realization upon, the Mortgaged Property hereunder up to the Maximum
Secured Amount, whether made pursuant to the power of sale hereunder, any
judicial proceeding, any judgment or decree of foreclosure or sale or otherwise
shall be paid into the applicable Collateral Account and applied and paid as
follows:
(a) FIRST: to the payment of all expenses of such sale or other
realization, including compensation for the Person conducting such sale (which
may include the Mortgagee), the cost of title searches, foreclosure certificates
and attorneys' fees and expenses incurred by such Person, together with interest
on any such expenses paid by such Person at the Post-Default Rate for Revolving
Loans from the date paid by such Person through the date repaid to such Person;
(b) SECOND: to the payment of the expenses and other amounts payable
under Sections 4.04 or 7.02; and
(c) THIRD: to the payment of the other Secured Obligations in the
order and priority set forth in Section 20 of the Security Agreement, until all
Secured Obligations shall have been paid in full; and
(d) FOURTH: to pay to the Mortgagor or its successors and assigns, or
as a court of competent jurisdiction may direct, any surplus then remaining from
such proceeds.
SECTION 5.7. ASSIGNMENT OF LEASES. (a) To the fullest extent permitted
under applicable law, subject to Section 5.07(d), the assignments of the Leases
and the Rents under Granting Clauses VI and VII are and shall be present,
absolute and irrevocable assignments by the Mortgagor to the Mortgagee and,
subject to the license to the Mortgagor under Section 5.07(b), the Mortgagee or
a Receiver appointed pursuant to Section 5.02(a)(v) (whichever is the Person
exercising the rights under this Section) shall have the absolute, immediate and
continuing right to collect and receive all Rents now or hereafter, including
during any period of redemption, accruing with respect to the Property. At the
request of the Mortgagee or such Receiver, the Mortgagor shall promptly execute,
acknowledge, deliver, record, register and file any additional general
assignment of the Leases or specific assignment of any Lease which the Mortgagee
or such Receiver may require from time to time (all in form and substance
satisfactory to the Mortgagee or such Receiver) to effectuate, complete,
perfect, continue or preserve the assignments of the Leases and the Rents under
Granting Clauses VI and VII.
(b) So long as an Event of Default is not continuing, the Mortgagor
shall have a license to collect and receive all Rents (but not prior to thirty
(30) days before the due date thereof) and apply the same subject to the
provisions of the Financing Documents, such license to be terminable as provided
in Section 5.07(c).
(c) If an Event of Default has occurred and is continuing, the
Mortgagee or a Receiver appointed pursuant to Section 5.02(a)(v) (whichever is
the Person exercising the rights under this Section) shall have the right to
terminate the license granted under Section 5.07(b) by notice to the
27
Mortgagor and to exercise the rights and remedies provided under Section
5.07(a), under Sections 5.02(a)(vi) and (vi) or under applicable law. If an
Event of Default is continuing, upon demand by the Person exercising the rights
under this Section, the Mortgagor shall promptly pay to such Person all Security
Deposits under the Leases and all Rents allocable to any period after such
demand. Subject to Sections 5.02(a)(vi) and (vi) and any applicable requirement
of law, any Rents received hereunder by such Person exercising the rights under
this Section shall be promptly paid to the Mortgagee, and any Rents received
hereunder by the Mortgagee shall be deposited in the applicable Collateral
Account, to be held, applied and disbursed as provided in the Security
Agreement, PROVIDED that, subject to Sections 5.02(a)(vi) and (vi) and any
mandatory requirement of applicable law, any Security Deposits actually received
by such Person shall be promptly paid to the Mortgagee, and any Security
Deposits actually received by the Mortgagee shall be held, applied and disbursed
as provided in the applicable Leases and applicable law. If after the occurrence
of an Event of Default all Events of Default shall have been fully cured or
waived as provided in the Credit Agreement, the license granted in Section
5.07(b) shall automatically be reinstated.
(d) Nothing herein shall be construed to be an assumption by the
Person exercising the rights under this Section, or otherwise to make such
Person liable for the performance, of any of the obligations of the Mortgagor
under the Leases, PROVIDED that such Person shall be accountable as provided in
Section 5.07(c) for any Rents or Security Deposits actually received by such
Person.
SECTION 5.8. DEALING WITH THE MORTGAGED PROPERTY. Subject to Section
7.01, the Mortgagee shall have the right to release any portion of the Mortgaged
Property, or grant or consent to the granting of any Lien affecting any portion
of the Mortgaged Property at the request of the Mortgagor, in each case, for
such consideration as the Mortgagee may require without, as to the remainder of
the Mortgaged Property, in any way impairing or affecting the Lien or priority
of this Mortgage, improving the position of any subordinate lienholder with
respect thereto or impairing or affecting the rights of any maker, guarantor,
endorser, co-maker or other obligor of the Secured Obligations, except to the
extent that the Secured Obligations shall have been reduced by any actual
monetary consideration received for such release and applied to the Secured
Obligations, and may accept by assignment, pledge or otherwise any other
property in place thereof as the Mortgagee may require without being accountable
therefor to any other lienholder.
SECTION 5.9. RIGHT OF ENTRY. The Mortgagee and its representatives
shall have the right (but not the obligation) (i) without prior notice if an
Event of Default is continuing, or (ii) with simultaneous notice, if any payment
or performance is immediately required in the reasonable opinion of the
Mortgagee to preserve the Mortgagee's right under this Mortgage or with respect
to the Mortgaged Property or (iii) after reasonable notice in all other cases,
to enter upon the Property at all reasonable times and with reasonable frequency
to inspect the Mortgaged Property or, subject to the provisions hereof, to
exercise any right, power or remedy of the Mortgagee hereunder, PROVIDED that
any Person so entering the Property shall not unreasonably interfere with the
ordinary conduct of the Mortgagor's business, and PROVIDED FURTHER that no such
entry on the Property for the purpose of performing obligations under Section
5.10 or for any other purpose shall be construed to be (x) possession of the
Property by such Person or to constitute such Person as a beneficiary, trustee
or mortgagee in possession, unless such Person exercises its right to take
possession of the Property under Section 5.02(a)(vi), or (y) a cure of any
Default or waiver of any
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Default or Secured Obligation. The expense of any inspection pursuant to clause
(iii) above shall be borne by the Mortgagee unless an Event of Default shall
have occurred and be continuing at the time of such inspection, in which case
the Mortgagor shall reimburse the Mortgagee for such expense.
SECTION 5.10. RIGHT TO PERFORM OBLIGATIONS. If the Mortgagor fails to
pay or perform any obligation of the Mortgagor hereunder, the Mortgagee and its
representatives shall have the right (but not the obligation) to pay or perform
such obligation of the Mortgagor (i) without notice, if an Event of Default is
continuing, (ii) with simultaneous notice, if such payment or performance is
immediately required in the reasonable opinion of the Mortgagee to preserve the
Mortgagee's rights under this Mortgage or with respect to the Mortgaged Property
or (iii) otherwise, after notice given reasonably in advance to allow the
Mortgagor an opportunity to pay or perform the same, PROVIDED that the Mortgagor
is not contesting such payment or performance as provided in Section 2.06, and
PROVIDED FURTHER no such payment or performance by the Mortgagee or its
representatives shall be construed to be a cure of any Default or waiver of any
Default or Secured Obligation. The Mortgagor shall reimburse the Mortgagee on
demand for its reasonable costs in connection with paying or performing any such
obligation of the Mortgagor (including reasonable attorneys' fees and expenses),
together with interest from the date of demand for each day until paid at the
Post-Default Rate for Base Rate Loans.
ARTICLE 6
SECURITY AGREEMENT AND FIXTURE FILING
SECTION 6.1. SECURITY AGREEMENT. To the extent that the Mortgaged
Property constitutes or includes tangible or intangible personal property,
including goods or items of personal property which are or are to become
fixtures under applicable law, the Mortgagor hereby grants a security interest
therein and this Mortgage shall also be construed as a pledge and a security
agreement under the UCC; and, upon the occurrence and continuance of an Event of
Default, the Mortgagee shall be entitled to exercise with respect to such
tangible or intangible personal property all remedies available under the UCC
and all other remedies available under applicable law. Without limiting the
foregoing, upon the occurrence and continuation of an Event of Default, any
personal property may, at the Mortgagee's option and, except as otherwise
required by applicable law, without the giving of notice, (i) be sold hereunder,
(ii) be sold pursuant to the UCC or (iii) be dealt with by the Mortgagee in any
other manner permitted under applicable law. The Mortgagee may require the
Mortgagor to assemble the personal property and make it available to the
Mortgagee at a place to be designated by the Mortgagee. At any time and from
time to time upon the occurrence and continuance of an Event of Default, the
Mortgagee shall be the attorney-in-fact of the Mortgagor with respect to any and
all matters pertaining to the personal property with full power and authority to
give instructions with respect to the collection and remittance of payments, to
endorse checks, to enforce the rights and remedies of the Mortgagor and to
execute on behalf of the Mortgagor and in Mortgagor's name any instruction,
agreement or other writing required therefor. The Mortgagor acknowledges and
agrees that a disposition of the personal property in accordance with the
Mortgagee's rights and remedies in respect to the other Mortgaged Property as
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heretofore provided is a commercially reasonable disposition thereof.
Notwithstanding the foregoing, to the extent that the Mortgaged Property
includes personal property (that is not a fixture or otherwise become real
property under applicable law) covered by the Security Agreement, the provisions
of the Security Agreement shall govern with respect to such personal property.
SECTION 6.2. FIXTURE FILING. To the extent that the Mortgaged Property
includes goods or items of personal property which are or are to become fixtures
under applicable law, and to the fullest extent permitted under applicable law,
the filing of this Mortgage in the real estate records of the county in which
the Property is located shall also operate from the time of filing as a fixture
filing with respect to such Mortgaged Property, and the following information is
applicable for the purpose of such fixture filing, to wit:
(a) Name and Address of the debtor:
Polaroid Corporation
000 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxx III
Vice President
Facsimile: 000-000-0000
(b) Name and Address of the secured party:
Xxxxxx Guaranty Trust Company of New York
as Collateral Agent
c/o XX Xxxxxx Services Inc.
000 Xxxxxxx Xxxxxxxxxx Xxxx
Xxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Facsimile: 000-000-0000
(c) This document covers goods or items of personal property which are
or are to become fixtures upon the Property.
(d) The name of the record owner of the real estate on which such
fixtures are or are to be located is Polaroid Corporation.
ARTICLE 7
MISCELLANEOUS
SECTION 7.1. RELEASE OF MORTGAGED PROPERTY. (a) This Mortgage shall
terminate and thereafter be of no further force or effect (except as provided in
Section 4.03) as follows:
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(i) when the Mortgagee shall have received instructions to
release any Mortgaged Property from the Lien of this Mortgage pursuant
to Section 2.17 of the Credit Agreement, the Lien of this Mortgage in
such Mortgaged Property shall terminate and all rights to each item of
such Mortgaged Property shall revert to the Mortgagor, PROVIDED that,
upon any sale of the Mortgaged Property permitted under the Credit
Agreement to the extent such assets constitute Existing Collateral,
arrangements satisfactory to the Administrative Agent shall be entered
into in order to transfer to the Administrative Agent a portion of cash
proceeds sufficient to make the prepayment of Loans, if any, as
required by Section 2.17(b) of the Credit Agreement and to the extent
such Mortgaged Property constitutes Additional Collateral (as defined
in the Security Agreement), the Collateral Agent will establish an
account with the Administrative Agent, in the name and under the
exclusive control of the Collateral Agent, into which all cash proceeds
of the sale shall be deposited; or
(ii) when (A) all the Commitments shall have expired or been
terminated, (B) all Hedging Agreements that are Secured Obligations
shall have expired or been terminated, (C) all outstanding Secured
Obligations shall have been paid in full, and (D) if any material
portion of such Secured Obligations shall have been refinanced on a
secured basis, all Contingent Secured Obligations shall have expired or
been terminated, the Lien of this Mortgage shall terminate and all
rights to the Mortgaged Property shall revert to the Mortgagor.
(b) Upon any such termination of this Mortgage or release of Mortgaged
Property, the Mortgagee shall, at the expense of the Mortgagor, execute,
acknowledge and deliver to the Mortgagor such documents, without warranty or
recourse, as the Mortgagor shall reasonably request to evidence the release of
Mortgaged Property or termination of this Mortgage, as the case may be.
SECTION 7.2. CONCERNING THE MORTGAGEE. The provisions of the following
Sections of the Security Agreement:
Section 12 Other Collateral Accounts
Section 18 Fees and Expenses; Indemnification
Section 19 Limitation on Duty of Collateral Agent in Respect of
Collateral
Section 21 Concerning the Collateral Agent
Section 22 Appointment of Co-agents
Section 23 Preservation of Collateral; Recovery of Expenses
are incorporated in this Mortgage by reference as though set forth in full
herein, with the following changes being made therein as incorporated herein:
(i) all references in said incorporated Sections to the
"Collateral Agent" and "Administrative Agent" are deemed changed
herein to refer to the "Mortgagee";
(ii) all references in said incorporated Sections to the
"Collateral" are deemed changed herein to refer to the "Mortgaged
Property";
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(iii) all references in said incorporated Sections to any
"Lien Grantor" are deemed changed herein to refer to the "Mortgagor";
(iv) all references to the "Company" in said incorporated
Section 18 are deemed changed herein to refer to the "Mortgagor"; and
(v) all references in said incorporated Sections to
"herein", "hereunder", "hereof", and words of similar import are
deemed herein to refer to such incorporated Sections and this
Mortgage.
SECTION 7.3. NOTICES. All notices, requests and other communications
required or permitted to be given under this Mortgage shall be in writing
(including facsimile, transmission or similar writing) and shall be given to the
Mortgagor or the Mortgagee as specified in Section 20 of the Security Agreement.
Except as otherwise provided herein, each notice, request or other communication
shall be effective as determined by Section 20 of the Security Agreement.
SECTION 7.4. AMENDMENTS IN WRITING. No provision of this Mortgage shall
be modified, waived or terminated, and no consent to any departure by the
Mortgagor from any provision of this Mortgage shall be effective, unless the
same shall be by an instrument in writing, signed by the Mortgagor and the
Mortgagee (with the written consent of the Required Lenders; PROVIDED that (i)
the written consent of all Lenders shall be required to modify Section 5.06 or
this Section 7.04 and (ii) the written consent of the Super-Majority Lenders
shall be required to modify Section 7.01 or the definition of "Secured
Obligations"). Any such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
SECTION 7.5. SEVERABILITY. All rights, powers and remedies provided in
this Mortgage may be exercised only to the extent that the exercise thereof does
not violate applicable law, and all the provisions of this Mortgage are intended
to be subject to all mandatory provisions of applicable law and to be limited to
the extent necessary so that they will not render this Mortgage illegal,
invalid, unenforceable or not entitled to be recorded, registered or filed under
applicable law. If any provision of this Mortgage or the application thereof to
any Person or circumstance shall, to any extent, be illegal, invalid or
unenforceable, or cause this Mortgage not to be entitled to be recorded,
registered or filed, the remaining provisions of this Mortgage or the
application of such provision to other Persons or circumstances shall not be
affected thereby, and each provision of this Mortgage shall be valid and be
enforced to the fullest extent permitted under applicable law.
SECTION 7.6. BINDING EFFECT. (a) The provisions of this Mortgage shall
be binding upon and inure to the benefit of each of the parties hereto and their
respective successors and assigns; and all references herein to the "MORTGAGOR"
and the "MORTGAGEE" shall include the respective successors and assigns of such
parties, PROVIDED that the Mortgagor may not assign or otherwise Transfer any of
its rights or obligations under this Mortgage without the consent of all of the
Lenders.
(b) To the fullest extent permitted under applicable law, the
provisions of this Mortgage binding upon the Mortgagor shall be deemed to be
covenants which run with the land.
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(c) Nothing in this Section shall be construed to permit the Mortgagor
to Transfer or xxxxx x Xxxx upon the Mortgaged Property contrary to the
provisions of the Credit Agreement.
SECTION 7.7. GOVERNING LAW. THIS MORTGAGE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE IN WHICH THE MORTGAGED
PROPERTY IS LOCATED, WITHOUT REGARD TO SUCH STATE'S CONFLICTS OF LAW PRINCIPLES.
SECTION 7.8. WAIVER OF TRIAL BY JURY. EACH OF THE MORTGAGOR AND THE
MORTGAGEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS MORTGAGE.
SECTION 7.9. SUBMISSION TO JURISDICTION. Each of the Mortgagor and the
Mortgagee hereby irrevocably submits to the nonexclusive jurisdiction of the
United States District Court for the District in which the Mortgaged Property is
located and of any State court for the jurisdiction in which the Mortgaged
Property is located for purposes of any legal proceeding arising out of or
relating to this Mortgage. Each of the Mortgagor and the Mortgagee hereby
irrevocably waives, to the fullest extent permitted under applicable law, any
objection which it may now or hereafter have to the laying of the venue of any
such proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum.
SECTION 7.10. COUNTERPARTS. This Mortgage may be signed in any number
of counterparts, each of which shall be an original.
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IN WITNESS WHEREOF, the Mortgagor has executed and delivered this
Mortgage under seal as of the date first set forth above.
Mortgagor:
POLAROID CORPORATION
By: /s/ XXXXXXXX X. XXXX III
----------------------------
Name: XXXXXXXX X. XXXX III
Title: VICE PRESIDENT
